Daly v. Beery

Birdzell, J.

I concur in the judgment of this court reversing the order appealed from, though I respectfully disagree with the holding of my brethren, Justices Eobinson and Grace, on the basic propositions that the title to the act is good, and that its purpose was not changed during passage. I agree that the act does not violate any provision of the Federal Constitution. This seems to me to be so clear that a statement of reasons is unnecessary.

I am constrained to concur in the order of reversal, by reason of the provisions of the amendment to § 89 of the Constitution, which states that no act of the legislative assembly may be declared unconstitutional by the supreme court unless by the vote of four of the five judges. There is no way to give effect to this constitutional provision unless the members of this court respect it as a part of the fundamental law by directing a judgment to be entered in individual eases which may not conform to their views as to what the judgment should be. Entertaining this opinion, I deem it my duty to vote for a reversal of the order, though disagreeing with two of my associates who have expressed the opinion that the title to the act is sufficient within § 61 of the Constitution, and that the purpose was not changed in violation of § 58.-If these two sections of the Constitution were not violated, as is held by Justices Eobinson and Grace, the act is clearly constitutional, regardless of the effect of the approval at the referendum election. So far as the disposition of this case is concerned, therefore, the individual views of the members of the court upon other questions which are not decisive would seem to be obiter. And the fact that other questions have been argued and discussed does not alter the situation.

I agree with that portion of the opinion of Chief Justice Christian-son, in which the reasons are stated -for the conclusion that the title to the act in question was not sufficient and that its purpose was changed during passage. Further than this, my opinion is reserved on all con*308stitutional questions presented, for the reason that they are not decisive of the case.

Christianson, Ch. J.

The sole question involved in this case is the constitutionality of chap. 188, Laws 1919. The respondents contend that the statute violates the 14th Amendment to the Federal Constitution; and, among others, §§58 and 61 of the state Constitution. Mr. Justice Bronson deemed himself to he disqualified and has taken no part in the consideration of the case. Two different district judges successively called in to sit in his place, also deemed themselves to be disqualified. Inasmuch as all members of the court were of the opinion that the act does not contravene the 14th Amendment; and inasmuch as two members of the court — Justices Grace and Bobinson, — declared themselves to be of the opinion that the act does not contravene any provision of the state Constitution, no other district judge was called in to sit in the place of Mr. Justice Bronson, for under our Constitution the vote of Justices Grace and Bobinson is decisive of the constitutional question. Our Constitution provides: “That in no case shall any legislative enactment or law of the state of North Dakota be declared unconstitutional unless at least four of the judges of the supreme court so decide.” Const. § 89, as amended. While I agree that the votes of Justices Grace and Bobinson are decisive of the case, I do not agree that the statute under consideration does not contravene §§ 58 and 61 of the state Constitution. On the contrary I am firmly of the opinion that it violates both of these sections. And inasmuch as Justices Grace and Bobinson have filed opinions setting forth at some length the reasons why they are of the opinion that the statute does not violate these constitutional provisions, I deem it proper to indicate the reasons why I am of the opinion that it does.

If I correctly read the opinions prepared by Justices Grace and Bobinson they are to the effect:

1. That the legislature, in the enactment of the statute under consideration, did not violate, and that the statute does not contravene, either § 58 or § 61; and,

2. That even though the statute as enacted contravened these sections, it became validated by reason of its approval at a referendum election. I do not believe that either contention is correct.

*309Tbe statute in question was introduced as Senate Bill No. 157, on February 4, 1919. During tbe course of its passage it was amended. In order to visualize tbe changes made by sueb amendments, I set forth in parallel columns tbe bill as introduced, and as finally enacted and approved.

As Introduced.

A Bill for an Act Creating a State Publication and Printing Commission; Prescribing Its Duties and Powers; and Eepealing all Acts and Parts of Acts Conflicting Herewith.

Be it enacted by the legislative assembly of the state of North Dakota:

Section 1. In lieu of the commissioners of public printing, there is hereby created a Commission to be known as the State Publication and Printing Commission.

Section 2. The said commission shall be composed of the state treasurer, attorney general, and the secretary of state; and shall hold their first meeting in the office of the secretary of state within twenty days after the passage and approval of this act.

Section 3. The said commission is authorized to appoint a state printer, who shall also be secretary to the commission, and such appointee may, by the commission be removed with or without cause. The person so appointed must at the time of his appointment be a legal resident'of the state of North Dakota for at least one year last past, and be a practical expert printer, and shall receive an annual salary of twenty-four hundred ($2,400) dollars; he shall perform all the duties now required by law for the expert printer and such other duties as may be assigned to him *310by the commission hereby established, and shall hold his office in the state capitol.

Section 4. In addition to all the duties and powers now vested by law in the board heretofore known as the Commissioners of Public Printing, the commission shall have power to make all printing contracts in all matters of state printing to be done for or by the state or any of its departments.

*312Section 5. The legislative intent of this act is to co-ordinate the publication of all state printing for all state departments under the control of one body.

Section 6. All acts and parts of acts in conflict with this act are hereby repealed.

Section 7. An emergency is hereby declared to exist, therefore, this act shall take effect and be in force from and after its passage and approval.

*309As Enacted.

'An Act Creating a State Publication and Printing Commission; Prescribing Its Duties and Powers; and Eepealing All Acts and Parts of Acts in Conflict Herewith.

Be it enacted by the legislative assembly of the state of North Dakota:

Section 1. In lieu of the commissioners of public printing, there is hereby created a Commission to be known as the State Publication and Printing Commission.

Section 2. The said commission shall be composed of the secretary of state, the commissioner of agriculture and labor, and the chairman of the board of railroad commissioners. It shall hold its first meeting in the office of the secretary of state within twenty days after the passage and approval of this act.

Section 3. The said commission is authorized to appoint a state printer, who shall also be secretary to the commission, and such appointee may, by the commission, be removed with or without cause. The person so appointed must at the time of his appointment have been a resident of the state of North Dakota for at least one year last, past, and must be a practical expert printer. He shall receive an annual salary of twenty-four hundred ($2,400) dollars; he shall perform all the duties now required of the expert printer, and such other duties as may be assigned to him *310by the commission hereby established, and shall maintain his office in the state capitol.

Section 4. In addition to the duties and powers now vested by law in the board heretofore known as the Commissioners of Public Printing, the Commission shall have the power to make all printing contracts in all matters of state printing, and the power to designate a newspaper in every county in the state, and a newspaper or newspapers in the state, in which publications required by law to be published by state officials, must be made. It shall be the duty of said commission to designate in every county of this state a newspaper, which shall be the official newspaper in each county in which it is designated, until its successors shall be chosen as provided by law; and in said newspapers in each county as designated, shall be published official proceedings of the board of county commissioners in each county respectively, and all other notices and publications that are now required by law to be published by county officers in the several counties; all summons, citations, notices, orders and other processes in all actions and proceedings in the supreme, district or county or justice courts, which are or may be hereafter required by law to be published in the respective counties of the state; all publications of every nature that are now or may hereafter be required to be published by state officers; all notices of foreclosure by advertisement or real estate or chattel mortgages or of other liens on real or personal property; all notices of whatsoever kind and character now or hereafter required by law to be published, in said county; provided, however, that in organized cities, town or villages, where no official newspaper is published, said city, town or village, council, com*311mission or board, may designate an official newspaper for the publication of such notices and legal publications as are now or may hereafter be required by law for said cities, towns or villages, including legal notices and official statements of the schools within such cities, towns and villages, and the statements of banks and other corporations therein; but in cities, towns or villages where the commission designates an official newspaper, such notices and legal publications as are now required by law to be published by cities, towns or villages, shall be published in the official newspaper designated by the commission. The commission shall have the power and it shall be its duty to select one or more legal newspapers in this state for the publication of all state legal notices, including notices for the publication of any reports of corporations doing business in this state, now required by law to be published, either from the office of the insurance commissioner or secretary of state or other state officers, and it shall have the power, in addition to the provisions of law now existing, to make contracts with any printer, newspaper publisher, person or corporation, for the publication of any state legal notice, for the printing of the state documents, laws, journals or other state matters, or for the making or providing of state stationery, of blanks and other documents whatsoever in their judgment they may determine so to do. It shall be the duty of every newspaper in this state thus designated by the commission to send to the secretary of such commission, at Bismarck, weekly, two copies of every issue published by it, and the secretary shall keep on file in his office in the state capitol a complete file of every such newspaper, and shall furnish to any person certified copies of matter contained in any of such papers, upon *312the payment by such person of the sum of 10 cents per folio for each copy so-furnished. by him; the fee for such certified copies shall be turned over to the state treasurer on the first business day of each month.

Section 5. The intent of this act is to co-ordinate publication of all state legal notices, publications, reports and laws of every kind and nature under one supervising head, to have definite and certain legal newspapers in this state, so that information can be readily secured concerning any legal publication, and to economize in the matter of state printing; and to keep a complete system of files where legal publications of every kind in this state can be readily found. This act shall receive a liberal construction in order to effectuate the purposes and intent thereof.

Section 6. All acts and parts of acts in conflict with this act are hereby repealed.

Sections 58 and 61 of the state Constitution read as follows:

“No law shall be passed except by a bill adopted by both houses, and no bill shall be so altered and amended in its passage through either house as to change its original purpose.” § 58.
“No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed.” § 61.

That the courts possess the same power to expound and apply, and that it is their sworn duty to enforce, these provisions, the same a* other constitutional provisions, is beyond question. Lewis’s Sutherland, Stat. Constr. § 114; Cooley, Const. Lim. 7th ed. pp. 202-214; *31325 R. C. L. p. 836. See also State ex rel. Standish v. Nomland, 3 N. D. 427, 44 Am. St. Rep. 572, 57 N. W. 85; Richard v. Stark County, 8 N. D. 392, 79 N. W. 863. This is especially true under our Constitution, which expressly declares that its provisions “are mandatory and prohibitory unless, by express words, they are declared to be otherwise.” Const. § 21; Ex parte Liddell, 93 Cal. 633, 29 Pac. 251. And § 61, supra, clearly contemplates that the courts shall enforce it and hold invalid statutory provisions violative thereof; it expressly provides that “a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed” in its title.

The two sections of the Constitution are framed in the plainest terms. There is no room for difference of opinion as to what the language employed means. “Words or terms used in a constitution, being dependent on ratification by the people, must be understood in a sense most obvious to the common understanding at the time of its adoption.” 6 R. C. L. p. 52. This has repeatedly been emphasized by the greatest authorities on constitutional law.

Judge Marshall said: “The framers of the Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L. ed. 23, 68.

Judge Cooley said: “Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.” Cooley, Const. Lim. 7th ed. 93.

Judge Story said: “Constitutions are not designed for metaphysical or logical subleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” Story, Const. § 454.

*314Sections 58 and 61 of the Constitution run along similar lines. Both were designed to prevent certain pernicious practices which experience had taught would spring up where such provisions did not exist. They were placed in the Constitution to insure better legislation.

In considering a constitutional provision similar to § 61, the supreme ■court of Michigan, speaking through the great jurist, Cooley, J., said: “The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number; but the framers of the Constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly notified of its design when required to pass upon it.” People ex rel. Drake v. Mahaney, 13 Mich. 481.

The court of appeals of New York declared the object of this provision to be “that neither the members of the legislature nor the people should be misled by the title.” Sun Mut. Ins. Co. v. New York, 8 N. Y. 239. The supreme court of Iowa said: “The intent of this provision of the Constitution was to prevent the union in the same act, of incongruous matter and of objects having no connection, no relation. And with this it was designed to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another.” State ex rel. Weir v. County Judge, 2 Iowa, 280.

Buling Case Law says: “The mischief sought to be remedied by the *315requirement of a single subject or object of legislation was the practice of bringing together in one bill matters having no necessary or proper connection with each other, but often entirely unrelated and even incongruous. By the practice of incorporating in proposed legislation of a meritorious character provisions not deserving of general favor, but which, standing alone and on their own merits, were likely to be rejected, measures which could not have been carried without such a device and which were sometimes of a pernicious character were often incorporated in the laws; for, to secure needed and desirable legislation, members of the legislature were, by this means, often induced to sanction and actually vote for provisions which, if presented as independent subjects of legislation, would not have received their support. It was also the practice to include in the same bill wholly unrelated provisions, with the view of combining in favor of the bill the supporters of each, and thus securing the passage of several measures, no one of which could succeed on its own merits. To do away with this hodgepodge or dogrolling’ legislation was one, and perhaps the primary, object of these constitutional provisions. Another abuse that developed in legislative bodies was the practice of enacting laws under false and misleading titles, thereby concealing from the members of the legislature, and from the people, the true nature of the laws so enacted. It is to prevent surreptitious legislation in this manner that the subject or object of a law is required to be stated in the title. . While the objects of these constitutional provisions are variously stated, the authorities are agreed that they were adopted to remedy these and similar abuses. The purpose of these constitutional provisions has been summarized as follows: (1) To prevent dogrolling’ legislation; (2) to prevent surprise or fraud in the legislature, by means of provisions in bills of which •the titles give no intimation; and (3) to apprise the people of the subject of legislation under consideration.” 25 R. C. L. § 83, pp. 834—836. Section 58, supra, in express terms says that “no bill shall be so altered and amended on its passage through either house as to change its original purpose.” Language could be no plainer. It interprets itself. There is no room for construction. The only difference of opinion that can reasonably arise is as to whether a certain alteration or amendment changes the original purpose of the hill.

Section 61 provides that an “act shall contain but one subject, but *316that that shall be expressed in the title. The title thus made a part of an act must agree with it by expressing its subject. The title will fix bounds to the purview, for it cannot exceed the title subject, nor be contrary to it. . . . It is not enough that the act embraces but a single subject or object, and that all its parts are germane. The title must express that subject, and comprehensively enough to include all of the provisions in the body of the act.” State ex rel. Standish v. Nomland, 3 N. D. 427, 432, 44 Am. St. Rep. 572, 57 N. W. 85 Lewis’s Sutherland, Stat. Constr. § 87. The provision “may be violated in two ways: First. The act must not embrace more than one subject. If it embraces two subjects, and both are fully expressed in the title,, still the provision is clearly violated. Black, Const. Law, 288; Cooley, Const. Law, 178. Second. If it embraces but one subject, and that subject be not expressed in the title, the provision is equally violated. This is the clear language of the provision. ‘But if the act relates to one subject-matter, which is properly expressed in the title, and also embraces provisions not related to such subject, which are not mentioned in the title, then the foreign or unrelated matters will be separated from the rest of the statute, if possible, and rejected, while the main body of the act will be sustained.’ People ex rel. Rochester v. Briggs, 50 N. Y. 553; Cooley, Const. Law, 148.” Richards v. Stark County, 8 N. D. 392, 393, 79 N. W. 863.

In the court below and in this court respondents contended:

1. That the matter inserted in Senate Bill No. 157, relating to the designation of newspapers in which all official and legal notices must be published, was variant from and changed the original purpose of the bill.

2. That the title of the act did not express the subject relating to the designation of such newspapers, — i. e., that the title is not broad enough to cover the designation, by the commission, of newspapers in the various counties of the state in which official notices of counties and municipalities, and legal notices of private parties, must be published.

3. That the act embraces more than one subject.

During the entire history of the state there has been a state printing commission. It will be noted that § 1 of the act under consideration recognizes the existence of such commission. The state printing com*317mission was established by a law enacted by the first legislative assembly of the state. See Laws 1890, chap. 119; Comp. Laws 1913, § 45. The commission so created consisted of the secretary of state, state treasurer, and state auditor. Such commission was required to advertise for bids for the printing of the state, and authorized to contract with the lowest bidder for the different classes of printing. Laws 1890, chap. 119; Comp. Laws 1913, §§ 47-51. The act consisted of thirty-six sections. It classified the state printing, and contained full and explicit particulars as to everything relating to state printing, and the duties of the commissioners in regard thereto. Later, provision was made for the employment by the commissioners of public printing of an expert to assist them in the performance of their duties. Rev. Codes 1895, Comp. Laws 1913, § 56.

It appears that the printing for the various educational institutions, as well as some of the printing for the state superintendent of public instruction, was not included in the printing to be contracted for by the commissioners of public printing. At least the laws had been construed as vesting in the boards in charge of the educational institutions the power to contract for the printing to be done for such institutions, and' as authorizing the state superintendent of public instruction to contract for some of the printing for his department. See Report of Attorney General for 1915-1916, p. 236. The obvious purpose of Senate Bill No. 157 (as introduced) was to change the personnel of the commission having charge of the state printing, and to confer upon the commission as recreated the functions exercised by the former commission, and bring all kinds of printing for the various state departments under its jurisdiction. It will be noted that no attempt was made (either in the bill as introduced or as enacted) to legislate with reference to all the matters covered by the former law, such as the classification of printing, advertisement for bids, etc. It was apparently the intention that the provisions of the former law should remain in full force and effect as to such matters. In the bill as introduced, the legislature declared the intent to be “to co-ordinate the publication of all state printing for all state departments under the control of one body.” Anyone reading the title, and the bill as originally introduced, would have no question as to its purpose.

It will be noted that by the amendment inserted in § 4, the Com*318mission was granted power “to designate- in every county of this state a newspaper, which shall be the official newspaper. . . . And in said newspapers in each county as designated, shall be published official proceedings of the board of county commissioners in each county respectively and all other notices and publications that are now required by law to be published by county officers in the several counties, all summons, citations, notices, orders and other processes in all actions or proceedings in the supreme, district or county or justice courts; ... all notices of foreclosure by advertisement of real estate or chattel notices or of other liens on real or personal property; all notices of whatsoever kind and character now or hereafter required by law to be published.” It is further provided that “in cities, towns or villages where the commission designates an official newspaper, such notices and legal publications as are now required by law . . . shall be published in the official newspaper designated by the commission.” The publication of such various notices and statements was fully provided for under the former laws. Under the then existing laws, it was the duty of the county commissioners to designate the official newspapers of the counties and the duty of the proper city authorities to-designate the official newspaper of the city. That had been the settled law during the entire history of the state. Provision had also been made for the proper qualification of legal newspapers. And legal notices in private matters, such as summonses, citations, foreclosure notices, etc., might be published in any properly qualified newspaper. The amendment in effect repeals or amends all these various statutory provisions.

And, as was said by the supreme court of Michigan, in considering a somewhat similar proposition: “If this legislation can be upheld it would seem that the constitutional provision above quoted is worthless to prevent the evil against which it is manifestly directed.” If the constitutional provision is in the way of legislation, and the people desire that a bill may be so altered or - amended during the course of its passage in the legislature that it be eliminated from the Constitution, “there is a constitutional way to get rid of this provision. But it is the duty of the courts, while it remains in the Constitution, to see that it is obeyed.” Sackrider v. Saginaw County, 79 Mich. 59, 44 N. W. 165. See also Re House Bill No. 231, 9 Colo. 624, 21 Pac. *319472; Re House Bill No. 250, 26 Colo. 234, 57 Pac. 49; Weis v. Ashley, 59 Neb. 494, 80 Am. St. Rep. 704, 81 N. W. 318; Pottawatomie County v. Alexander, — Olka. —, 172 Pac. 436; State v. Chong Ben, 89 Or. 313, 173 Pac. 259, 1173.

Will anyone seriously contend that the publication of proceedings of boards of county commissioners, and of notices of foreclosure sale, summonses, and citations; or the designation of newspapers in which-such statements and notices must be published, — was within the “original purpose” of the bill. The question seems too plain for controversy. A comparison of the original bill with the one enacted demonstrates-beyond cavil that the matters inserted in § 4 during the course of the passage was wholly foreign to the original purpose of the bill. If § 58 of the Constitution can ever be violated by inserting matter in a bill during the course of its passage, which is foreign to and changes the original purpose thereof, it certain has been violated in this case. While many cases have been cited wherein statutes were held unconstitutional as violative of similar constitutional provisions, in no one was the violation of the provision so palpable as in this case.

It seems equally clear that the matter inserted in the act by the amendments is not expressed in the title. It will be noted that the statute is entitled, “An Act Creating a State Printing and Publication Commission; Prescribing Its Duties and Powers; and Repealing All Acts and Parts of Acts Conflicting Herewith.”

Under § 61, supra, “the title of an act defines its scope; it can contain no valid provision beyond the range of the subject there stated.” Lewis’s Sutherland, Stat. Constr. § 145. But provisions germane to-the subject expressed, or which may 'aid the accomplishment of the-purpose expressed in the title, may he included, and will he deemed covered by the title. As was said by the supreme court of Wisconsin: “When one reading a bill, with the full scope of the title thereof in mind, comes upon provisions which he could not reasonably have-anticipated because of their being in no way suggested by the title in any reasonable view of it, they are not constitutionally covered thereby. But in applying that rule, this other rule, which has been universally adopted, must be kept in mind. The- statement of a subject includes, by reasonable inference, all those things which will or may facilitate the accomplishment thereof.” Diana Shooting Club v. Lamoreux, 114 *320Wis. 44, 50, 91 Am. St. Rep. 898, 89 N. W. 880. Would anyone expect to find in an act entitled as the one under consideration anything in regard to the newspapers in which official proceedings and notices of counties and cities must be published? Would anyone about to foreclose a mortgage or probate an estate have the slightest reason fco apprehend that a law entitled as the one before us actually changed the established law of the state with respect to the newspapers in which foreclosure notices and citations in probate proceedings must be published ? It seems to me that reasonable men can make but one answer to these questions.

Section 61 of the Constitution was construed and applied in the early history of this state. In State ex rel. Standish v. Nomland, 3 N. D. 427, 44 Am. St. Rep. 572, 57 N. W. 85, the section was applied to an act entitled “An Act Creating the Office of the State Board of Auditors and Prescribing the Duties Thereof.” The act provided that the board of auditors should designate state depositaries, in which the state treasurer should deposit the funds of the state. The court held that the subject of the act was not sufficiently expressed in the title. In the decision in that case this court said: “This court should be careful to destroy no legislation sanctioned by the lawmaking branch of the state government, unless such legislation be a clear violation of the constitutional requirement. But we have no duty higher or more sacred than is the duty to preserve, in all its integrity, every provision in the fundamental law of the state. The provisions of our state Constitution are, by the terms of the instrument itself, declared to be mandatory, — mandatory alike upon the legislature and upon this court. If the legislature in any act disregarded the mandate, it is the duty of this court to nullify the act, and the fact that the abortive legislation may be highly beneficial and salutory in its nature can, in no manner, control that duty. Our. constitutional provision is clear, direct, and positive. ‘No bill shall embrace more than one subject, which shall be expressed in its title.’ What was the subject of the bill in this case? In § 85, Sutherland Stat. Constr. it is said: ‘It is a matter of some difficulty, in many instances, to determine precisely what is the subject of an act, by reason of the contrariety of its provisions and the complexity of its machinery and aims.’ The language is not inappropriate here. Generally speaking, the subject was the state funds; more speci*321finally it was the security and augmentation of those funds; but neither generally nor specifically is the subject expressed in the title, — ‘An Act Creating the Office of the Board of State Auditors and Prescribing the Duties Thereof.’ Was the act passed for the purpose of creating that board? Was that the subject — the object — of the act? Clearly not. The board was simply an instrumentality for the accomplishment of some purpose, but what purpose no human foresight could determine from that title. Following that title, the legislature might, with equal propriety, have passed an act relating to any subject upon which the legislature could constitutionally authorize a board to act. We have held that, when the subject of the act was properly expressed in its title, the act might create the means and instrumentalities required for its own accomplishment (State ex rel. Goodsill v. Woodmansee, 1 N. D. 246, 11 L.R.A. 420, 46 N. W. 970; State v. Hass, 2 N. D. 202, 50 N. W. 254), but it has never been held, under this provision, that where the title announced only the instrumentality, the act itself might announce the subject upon which the instrumentality was expected to operate. Were we disposed to be critical, we might say the title in this case does not even say that much, for it announced but one of several instrumentalities. The action of the governor and state treasurer is just as essential for the accomplishment of the purpose of the act as the action of the board. ‘It is required that an act shall contain but one subject, but that that be expressed in the title. The title thus'made a part of an act must agree with it by expressing its subject. The title will fix bounds to the purview, for it cannot exceed the title subject, nor be contrary to it. . . . It is not enough that the act embraces but a single subject or object, and that all its parts are germane. The title must express that subject, and comprehensively enough to include all of the provisions in the body of the act.’ Sutherland Stat. Constr. § 87. A single glance discovers that the title in this case meets no single requirement there specified.”

The language and reasoning in State ex rel. Standish v. Nomland, supra, is directly applicable in this case. The title to the act here in question is in effect like that involved in the Nomland Case, for of course all new legislation repeals previous acts relating to the same ■subject, and wholly in conflict with the new legislation. Here — as in the Nomland Case — the title stated that the act created a certain board *322or commission and prescribed its duties. Tbe following observation by the court in the Nomland Case is equally pertinent here: “Was tbe act passed for tbe purpose of creating that board? Was that tbe subject — tbe object — of tbe act? Clearly not. Tbe board was simply an instrumentality for tbe accomplishment of some purpose, but what purpose no human foresight could determine from that title. Following that title, tbe legislature might, with equal propriety, have passed an act relating to any subject upon which tbe legislature could constitutionally authorize a board to act.”

Clearly tbe designation of official or legal newspapers is not covered,— or germane to tbe subject covered — by tbe title. In fact this was at least impliedly recognized by tbe legislature which enacted tbe statute under consideration. Tbe same legislature also enacted an act entitled “An Act Providing for tbe Selection of One State, County and Municipal Newspaper in Each County, Prescribing the Manner of Its Selection and Duties.” Laws 1919, chap. 187. Tbe act so entitled provided that, at tbe next general election held throughout tbe state, an. official newspaper should be selected by tbe voters in each organized county in tbe state, in which all legal notices and official statements and advertisements should be published. (Tbe language relating to tbe notices to be so published is identical with that already quoted, which was inserted in Senate Bill No. 157 by amendment during tbe course of its passage.) This title of chap. 187 indicated that tbe purpose of tbe act was to provide for tbe selection of a newspaper “in each county” to prescribe “tbe manner of its selection,” and to prescribe tbe duties of such newspaper. Tbe purpose of tbe act was as stated in tbe title. Yet, Senate Bill No. 157 purports to legislate upon every matter covered by chap. 187, Laws 1919, — it provides for tbe selection of a newspaper in each county, prescribes tbe manner of its election, and tbe duties of such newspaper. Compare tbe titles of tbe two acts:

“An Act Creating a State Publication and Printing Commission; Prescribing Its Duties and Powers; and Repealing All Acts and Parts of Acts in Conflict Herewith.” Laws 1919, chap. 188.
“An Act Providing for the Selection . . . of One State, County and Municipal . . . Newspaper in Each County, . . . Prescribing the Manner of Its Selection and Duties.” Laws 1919, chap. 187.

*323Can it be said that the title of chap. 188 covers the subject stated in the title of chap. 187 ? It seems to me that there is no room for a difference of opinion as to how this question should be answered.

But it is contended that §§ 58 and 61 of the Constitution are inapplicable to laws which have been submitted and approved at a referendum election. It is even suggested that an act so approved “is, in effect, a constitutional amendment.” This suggestion ignores the fact that a different method is provided for the submission of constitutional amendments, whether proposed by initiative petition or by the legislative assembly, from that provided for the submission of a statute pursuant to a referendum petition.

But even a constitutional amendment does not become effective unless it has been adopted in accordance with the provisions of the existing Constitution. 6 R. C. L. p. 31. And “it is the duty of the courts to enforce provisions of an existing Constitution in reference to matters connected with proposed changes in the Constitution as in other cases.” 6 R. C. L. p. 32. See also 6 R. C. L. p. 72. Such rule is established by the overwhelming weight of judicial authority, and has been recognized by this court. In State ex rel. Fargo v. Wetz, 40 N. D. 299, 5 A.L.R. 731, 168 N. W. 835, 846, this court, speaking through Mr. Justice Birdzell, said: “If the [constitutional] amendment were not properly submitted, it would unquestionably be the duty of the court to declare it not a part of the Constitution. The provisions of our Constitution are mandatory and prohibitory (§ 21), and, as such, the Constitution construes itself in relation of such a matter as that under discussion. State ex rel. Woods v. Tooker, 15 Mont. 8, 25 L.R.A. 560, 37 Pac. 840. Thus, when the Constitution says that ‘amendments shall be submitted ... in such a manner that the electors shall vote for or against each . . . separately’ [§ 202] the failure of the proper officials to comply with the direction is necessarily fatal to the attempted amendment. It is the duty of the court to uphold and give effect to every part of the Constitution, and this provision can only be enforced by refusing to recognize as an amendment that which was never legally adopted as such. That this duty has been fully and faithfully discharged by the courts in the past is indicated by the statement of Dodd. After an exhaustive consideration of the experiences of the various states in the submission and adoption of con*324stitutional amendments, he says: ‘If a required step is omitted, or is not even in substance complied with, no court has ever upheld the amendment, even though it may have been approved by the people; that is, the constitutional requirements are mandatory, not merely directory, and no court will overlook the entire disregard of even the less important of such requirements. Dodd, Revision & Amendment of State Const. pp. 217, 218.”

In the main, the general principles governing the construction of statutes apply also to the construction of constitutions. Constitutional provisions, however, are intended to establish the frame work and general principles of the government, and it is presumed that they have been more carefully and deliberately framed than is the case with statutes. The fundamental purpose of construction as applied to constitutional provisions is to ascertain and give effect to the intent of the framers and of the people who adopted them. Therefore, in construing a constitutional provision, the court should constantly keep in mind the object sought to be accomplished by the adoption thereof. It is an elementary rule of construction, applicable alike to the statutes and constitutional provisions, that repeals by implication are not favored. It is presumed that all laws are passed, and all constitutional amendments adopted, with a knowledge of those already existing, and that there was no intention to repeal existing provisions without so declaring. “The intention to repeal will not be .presumed nor the effect of repeal admitted unless the inconsistency is unavoidable and only to the extent of repugnance.” A later and an older provision will, and if is possible and reasonable to do so, be always construed together so as to give effect, not only to the distinct parts or provisions of the latter, not inconsistent with the new law, but to give effect to the older law as a whole, subject only to restrictions or modification of its meanings, when such seems to have been the purpose of the new law. It is the duty of the court to so construe the laws, if possible, that both shall be operative. “There must be such a manifest and total repugnance that the two enactments cannot stand.” “One provision is not repugnant to another unless they relate to the same subject and are enacted for the same purpose.” Lewis’s Sutherland, Stat. Constr. 2d ed. §■ 217. “An implied repeal on the ground of repugnancy will not result in any case unless both the object and the subject of the statutes *325are the same; and if their objects are different both statutes will stand, though both relate to the same subject, because in such case the conflict is apparent only and when the language ... is restricted to its own object the two will run in parallel lines without meeting.” 26 Am. & Eng. Enc. Law, 2d ed. p. 727.

Surely there is no irreconcilable conflict between §§ 58 and 61 of the Constitution and the provisions reserving, and providing for the exercise of, the power of referendum. There is no reason why they may not be read together, and each and all given full effect.

The purpose of the referendum is well known. The power is reserved primarily to enable the people to reject legislation which they deem to be undesirable. It is invoked by those who are dissatisfied with and seek to bring about the defeat of some legislative enactment, and not by those who seek to secure approval thereof. It has never been contended or supposed that the referendum power was reserved for the purpose of having questions relating to the constitutionality of laws submitted to and passed upon at a referendum election. On the contrary, it has been'held that constitutional provisions like §§ 58 and 61, supra, are as applicable to statutes submitted to a popular vote as to those which become operative without such vote. Ruling Case Law, says: “It has been contended that there is some difference in the rule [as to the applicability of constitutional provisions like § 61] between an act which is submitted to popular vote and one which becomes operative without such vote. But there is no reason or foundation for such a distinction. Presumably a motive which would influence a legislator in voting for the act would equally influence an elector, and a title which would direct the mind of a legislator to the general subject of an act would fairly direct the mind of the voter to the same subject.” 25 R. C. L. p. 839. See also State ex rel. Gibson v. Richardson, 48 Or. 309, 8 L.R.A.(N.S.) 362, 85 Pac. 225.

In this connection it is well to bear in mind the reason for the rule announced in § 61 of the Constitution. As has been indicated, the purpose of § 61 was to restrict each legislative measure to one “subject” to the end that “logrolling” legislation might never be enacted in this state. It was intended to compel each “subject” of legislation to stand upon its own merits; to afford each legislator an apportunity to vote for or against any question affecting one subject, separately and *326independently from his vote for or against any question relating to any other subject, and to prevent the practice of incorporating in proposed meritorious legislation, provisions having no necessary or proper connection therewith, and which provisions might have failed if presented as individual measures. Manifestly the reason for the rule announced in § 61 is as applicable to voters as to legislators, and there is no good reason why the section should not apply as well to measures or propositions submitted to the people as to those submitted to the legislators.

On the contrary the principle embodied in § 61 of the Constitution is generally deemed applicable to propositions submitted at elections. In Stern v. Fargo, 18 N. D. 289, 26 L.R.A.(N.S.) 665, 122 N. W. 403, this court said: “Under our system of elections, every voter is entitled to the opportunity to vote for or against any question submitted, separately and independently from his vote for or against other propositions submitted.” The case cited involved a bond issue for the construction and installation of a waterworks pumping station, and an electric lighting plant in connection therewith. Paragraph 15 of the syllabus reads: “A resolution adopted by the city council, providing for an election to vote on the issuance of bonds, and a notice by the city auditor of such election, which state the purpose of the proposed bond issue to be ‘to defray the cost of building and constructing a new waterworks pumping station and installing therein a new high duty pump and necessary steam boilers, . . . and for the purpose of installing an electric light plant in connection with said pumping station for furnishing street and other lights and power/ states two purpose., and an election held pursuant to such resolution and notice is illegal, and a majority vote in favor of issuing bonds for the purposes stated does not authorize or empower the city council to issue them.” In the course of the opinion the court said: “The authorities are nearly unanimous to the effect that a proceeding by which two questions are submitted, when such questions or their subjects and purposes are not naturally related or connected, is invalid, and renders any election in which such questions have been so submitted invalid. . . . Among the reasons why both propositions should not be submitted to a single vote are that our whole election system, whether it relates to candidates or public improvements or works, is built up and founded *327on the fundamental principle that every elector shall be given the opportunity to vote for or against any candidate, or any proposition, independent of and separate from his vote for or against any other candidate or proposition. No one would seriously argue that an election was fair which only admitted of the voter voting for or against all the candidates on any one party ticket, and inclosing all the names on one party ticket in a bracket would not make such a proceeding valid. It is equally important that the voter be given the same opportunity in voting on questions not relating to candidates. If two propositions can be joined in such h manner that the voter must vote for or against both, it admits of the submission of a question devoid of merit in connection with one for which there is a pressing demand, and of a weak proposition being carried on the strength of a worthy one.”

In Hughes v. Horsky, 18 N. D. 474, 122 N. W. 799, the court, in applying the same principle, held that an election to issue bonds for the erection of two separate buildings to be used respectively for courthouse and jail purposes constituted two questions, and that the matter must be submitted in such manner that each voter might vote for or against each proposition independently of the other.

The reasoning in these cases is equally applicable to statutes submitted to the people for approval or rejection. Take the statute under consideration: A voter might be perfectly willing to change the personnel of the printing commission and extend the powers of such commission so as to embrace the printing for all the state departments and institutions, and yet absolutely opposed to making any change in the existing laws with respect to the designation of official newspapers of counties and cities, or in the laws relating to the newspapers in which private legal notices must be published. Certainly there is no necessary or proper connection between state printing and publication, and the publication of official proceedings of county commissioners, of the publication of citations in private proceedings and notices of foreclosure sales. And yet a voter at the referendum election was confronted with a situation where he either had to accept or reject all propositions; that is, he was put in a position where, in order to approve of the proposition that all state printing should be done under the supervision of the state printing and publication commission, he must also approve of th9 *328propositions that such commission be authorized to designate all newspapers in which official and private notices required to be published under the laws of this state must be published; and that all such notices must be published in the papers so designated.

Clearly the reason for the rule embodied in § 61 is applicable as well to measures which have been submitted at a referendum election as to measures against which the power of referendum has not been invoked. Certainly no intent has been manifested to withdraw measures submitted at referendum elections from the operation of said section. The provision under which the act in question was referred provided: “The veto power of the governor shall not extend to measures initiated by or referred to the electors. No measures enacted or approved by a vote of the electors shall be repealed or amended by the legislature, except upon a yea and nay vote upon a roll call of two thirds of the members elected to each house.” Hence, it is apparent that the framers of the provision under which the referendum election involved in this case was held had in mind, and clearly evidenced their intent, to limit the power of both the governor and the legislature in regard to measures which had been submitted to and approved by the electors. And they doubtless were also aware of the pending constitutional amendment tending to limit the power of the supreme court to adjudge legislation to be unconstitutional. If there had been any intention of further curtailing the power of the courts as to ruling upon the constitutionality of measures which received the approval of the electors at an election; or if it had been the intention to place measures which had been approved at a referendum election upon a different plane (so far as the power of the courts was concerned) — from measures which had been so approved, such intention would doubtless have been expressed in positive and unmistakable terms.

“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and legal contemplation is as inoperative as if it had never been passed. Since an unconstitutional law is void, it imposes no duties and confers no power or authority on anyone; it affords protection to no one, and no one is bound to obey it, and no courts are bound to enforce it.” 6 R. C. L. p. 117.

The members of the court are all agreed that § 61 of the Constitu*329tion still applies to laws enacted by the legislature, and which have not been submitted to and approved by the electors at a referendum election. In other words, all are agreed that a law enacted by the legislature in violation of § 61 of the Constitution is invalid as enacted, but it is contended that this invalid measure becomes valid if the power of the referendum is invoked and it is sustained by the electors at a referendum election. It is difficult to see why a measure void because enacted in a manner forbidden by the fundamental law of the state should become valid because it is of such nature that a sufficient number of the electors of the state are so dissatisfied with it that they seek to have it defeated by means of the referendum. The result is that a measure enacted in violation of § 61, which is so entirely satisfactory as not to cause the referendum to be applied, will fall, whereas one of such nature as to cause the referendum to be applied may be sustained. Will a referendum election make valid'legislation which fails to receive the number of votes in either house as prescribed by the Constitution ? Will it validate legislation like that involved in State v. Schultz, 44 N. D. 269, 174 N. W. 81, which in effect fails to pass in one of the houses ? If measures which are invalid because passed in violation of the mandatory and prohibitory provisions of the Constitution may become valid laws upon receiving approval at a referendum election, then why may not every proposition submitted in the legislature be brought before the electors for ratification, regardless of whether it received the approval of either of the houses in the legislature? While no direct authority on the specific question under consideration has been cited or found, all judicial expressions on analogous or similar questions point one way. Thus in Bennett v. Drullard, 27 Cal. App. 180, 149 Pac. 368, the court of appeals of the state of California held that an initiative petition, setting forth an ordinance as an entirety and two alternative provisions, was void, and that no duty rested on the city authorities to eliminate as void the alternative provisions and submit the balance. In Thielke v. Albee, 76 Or. 449, 150 Pac. 854, the supreme court of Oregon held that the common council of the city may not initiate an ordinance and submit it to the people as an initiative measure without first passing it. In State ex rel. Gehlhar v. Boyer, 84 Or. 513, 165 Pac. 587, the supreme court of Oregon held that while the legislature, under the provisions of the *330'Constitution, might refer to the people any and all laws enacted by it, that a legislative bill passed by a majority of those present but by less than a majority of the whole membership of the legislature could not be submitted to the electors for approval at an election. In Tennent v. Seattle, 83 Wash. 108, 145 Pac. 83, the supreme court of Washington held that where an ordinance was amended and placed on its final reading, and passed in violation of a provision in the city charter to the effect that no ordinance shall be passed on its final reading at a meeting at which it is introduced, such ordinance was not rendered valid by the fact that if was opproved by popular vote at a referendum election pursuant to referendum petitions filed against the measure.

In my opinion, at least so much of chap. 188, Laws 1919, as relates to the designation of newspapers by the state printing and publication commission and the requirement that official statements and private legal notices must be published in such newspapers, is violative of the Constitution of this state.